What are a taxpayer's rights during an access to information and privacy (ATIP) request for their own tax records?

Introduction

David J Rotfleisch, CPA, JD is the founding tax lawyer of Taxpage.com and Rotfleisch & Samulovitch P.C., a Toronto-based boutique tax law corporate law firm.

An Access to Information and Privacy (ATIP) request is an online request that allows taxpayers in Canada — whether they are Canadian citizens, permanent residents, foreign nationals, or entities — to access certain types of records held by the Canadian government.

The taxpayer filing an ATIP request must provide proof of identity, authorization (if requesting information for others), and a description of the requested records. Each ATIP request can only be submitted to one government institution at a time for only one individual or entity.

Some institutions receive far more ATIP requests per year than others. As of November 21, 2024, the Canada Border Services Agency, on the top of the list, has received over 55,000 requests annually, followed by the Canada Revenue Agency (CRA), which received just over 10,000 requests, and the Immigration, Refugees, and Citizenship Canada (IRCC), which received around 9,700 requests within a year.

Under section 7 of the Access to Information Act, a government institution has 30 days to respond to an ATIP request. If the government institution requests additional time to process an ATIP request, the government must notify the taxpayer filing the ATIP request within the original 30-day deadline, and provide reasons for the required extensions. However, for a multitude of different reasons, an ATIP request may not be completed on time or correctly, even if there is a permitted extension of time for the government institution to process the ATIP request.

Pursuant to subsection 10(3) of the Access to Information Act, the failure of the government institution to respond to an ATIP request within the time limit prescribed constitutes a deemed refusal. If a taxpayer is dissatisfied with how the ATIP request was processed or handled, the taxpayer can file a complaint to the Office of the Information Commissioner of Canada (OIC) pursuant to section 30 of the Access to Information Act. It is critical for Canadian taxpayers to understand what rights they are entitled to when filing an ATIP request, before filing a complaint with the OIC.

This article thereby examines Canadian jurisprudence that provides further guidance on defining a taxpayer's right when a taxpayer submits an ATIP request asking the CRA to disclose relevant records.

Chabursky v Attorney General of Canada, 2024 FC 1595

Defining the jurisdiction of the Office of the Information Commissioner of Canada

The Applicant in Chabursky applied for judicial review of a decision made by the Office of the Information Commissioner of Canada (OIC) after the Applicant became dissatisfied with the documents provided by the CRA Appeals Division.

In 2017, the CRA conducted a tax audit of the Applicant's 2010 to 2012 income tax returns. On August 30, 2017, The Applicant made an ATIP request to the CRA to obtain all copies of documents in the CRA's possession in relation to the Applicant's 2008 through 2017 taxation years. On February 28, 2020, the CRA concluded the tax audit and subsequently issued Notices of Reassessment for the Applicant's 2010 through 2012 taxation years. On May 12, 2020, the Applicant duly filed a Notice of Objection to the 2010, 2011, and 2012 reassessments.

On December 13, 2021, the Applicant made the first complaint to the Office of the Information Commissioner of Canada (OIC) in relation to the CRA's delay of more than three years in responding to the Applicant's ATIP request. On December 17, 2021, the CRA disclosed documents in response to the ATIP request but redacted certain information. Subsequently, on April 29, 2022, dissatisfied with the information received, the Applicant emailed the OIC investigator assigned to the first complaint regarding his concerns with the redaction. The Applicant was required to submit a second formal complaint, which was made on May 3, 2022.

From May 12, 2020, to August 17, 2023, during the objection, the Applicant further requested the CRA Appeals Division to provide "copies of all working papers that [CRA] relied on." The Applicant received part of the documents, some of which were redacted. On September 29, 2023, the Applicant submitted a third complaint to the OIC, alleging that the CRA had improperly redacted the records and failed to provide complete records.

On May 31, 2022, the OIC issued a report of its investigation of the first complaint, finding that, among other things, the CRA had not adequately addressed the unreasonable delay in advancing the process of the Appellant's ATIP request. As of the hearing date of Chabursky, the second complaint remained under investigation and the OIC had yet to issue a decision.

On December 22, 2023, the OIC issued a decision refusing to investigate the Appellant's third complaint because it was not within the jurisdiction of the OIC to review the conduct of the CRA Appeals Division in providing requested records outside the access to information process, and the complaint was submitted to the OIC after the 60-day limit prescribed by section 31 of the Access to Information Act.

The court agreed that the OIC did not have jurisdiction to review the redacted working papers that were not provided to the Applicant in the context of an ATIP request. In particular, while the Canada Revenue Agency is a government body to which Access to Information Requests can be made, not all requests for documents to the CRA are ATIP requests.

The court also noted that the calculation of the 60-day limit started from the date on which the Applicant "became aware that the grounds for the complaint exist." However, the court believed that the Applicant was well aware of the grounds for the third complaint more than 60 days before the Applicant filed the third complaint. As a result, the Applicant's application for judicial review of the OIC's decision on the third complaint was dismissed.

Iris Technologies Inc. v Canada (National Revenue), 2022 FC 1404

Administrative processes must be exhausted before seeking judicial review

Iris Technologies Inc., the Applicant, filed a judicial review application, asking the Federal Court to adjudicate the alleged failure of the Office of the Information Commissioner of Canada (OIC) and to compel the CRA to produce requested disclosure pursuant to the Applicant's ATIP requests filed on April 21, 2020. The Applicant submitted four ATIP requests in total, covering different GST/HST reporting periods.

On August 10, 2020, the Applicant filed a complaint with the OIC for the CRA's delayed response to the ATIP requests, since the Applicant had yet to receive any requested disclosure, more than 100 days after the Applicant filed the ATIP requests. On April 12, 2021, the CRA fulfilled one of the four ATIP requests and provided the requested records. After the Applicant filed the judicial review application, the CRA disclosed documents related to the three remaining ATIP requests before the hearing date of the application.

The Applicant nevertheless proceeded to the hearing, arguing that the original complaint filed with the OIC concerned both the deemed refusal of CRA to provide requested disclosure, and the inadequacy of the disclosed documents.

The federal court found that the OIC is not in a position to investigate whether requested documents should be disclosed or to order disclosure when a complaint made to the OIC was exclusively concerning a deemed refusal.

The OIC would not have been able to investigate the non-existent contents that have yet to be provided, following Canada (Information Commissioner) v Canada (National Defence), [1999] 166 FTR 277 (FCA Decision). The OIC was also entitled to use its discretion to limit its investigation pursuant to the decision in Stratham v Canadian Broadcasting Corporation, 2010 FCA 315. When the CRA responded to the Applicant's ATIP requests, the CRA's compliance rendered the Applicant's complaint moot, before the OIC could take any action.

If an Applicant wishes to challenge the CRA's redaction of records, the Applicant should file a new complaint to the OIC, specifically requesting the OIC to investigate the redacted record. Once the Applicant has exhausted administrative remedies, the Applicant should then seek a judicial review application to determine whether the CRA's redaction was justified. As a result, the federal court struck out the judicial review application in its entirety.

Summary of Case Law 

A taxpayer has 60 days to file a complaint, and each complaint must be specific

When a taxpayer files an ATIP request, unless the government institution requests an extension of time to provide the requested records, the ATIP request must be fulfilled within 30 days. If the taxpayer receives no response concerning the filed ATIP request, the taxpayer then has 60 days to file a complaint to the Office of the Information Commissioner Canada (OIC) regarding the deemed refusal of the government institution to fulfill the taxpayer's ATIP request.

However, it is important to note that once the government institution responds to the ATIP request, the complaint becomes moot, and the OIC may not respond to the complaint.

After receiving the requested records, if a taxpayer is dissatisfied or concerned about the redactions made by the government institution, then the taxpayer can file a complaint to the OIC asking the OIC to review and investigate the redacted records.

The deadline to file the complaint can be tricky to calculate, as it will be 60 days from the date on which the taxpayer becomes aware of the grounds for the complaint. For example, if the records received include a few hundred pages of documents and the taxpayer takes an extended amount of time to complete reviewing all of the documents, the taxpayer may not be able to decide whether to file a complaint to the Office of Information Commissioner Canada until 60 days after the date on which the taxpayer receives the requested records.

However, if the taxpayer can prove that he or she only becomes aware of the ground for refusal at a later date, the taxpayer's complaint remains valid.

Know Your Rights as a Taxpayer requesting CRA Records

There are different ways a taxpayer can request records from the CRA. During a tax audit conducted by the CRA Audit Division or an objection filed with the CRA Appeals Division, if the taxpayer requests records to be provided directly by these divisions, investigation of such requests likely is not within the jurisdiction of the OIC.

Rather, it is more common to request review by the team leader or manager of the responsible auditor or appeals officer. Subsequently, if the taxpayer continues to dispute the CRA's decision by filing an appeal to the Tax Court of Canada or a judicial review application to the Federal Court, the taxpayer can then attempt to obtain further records from the CRA.

In contrast, when a taxpayer files an ATIP request to the CRA, the CRA's conduct is subject to the review of the Office of the Information Commissioner of Canada (OIC), if the taxpayer files a formal complaint requesting the OIC to do so.

David J Rotfleisch, CPA, JD is the founding tax lawyer of Taxpage.com and Rotfleisch & Samulovitch P.C., a Toronto-based boutique tax law corporate law firm and is a Certified Specialist in Taxation Law who has completed the CICA in-depth tax planning course. He appears regularly in print, radio and TV and blogs extensively.  

With over 30 years of experience as both a lawyer and chartered professional accountant, he has helped start-up businesses, cryptocurrency traders, resident and non-resident business owners and corporations with their tax planning, with will and estate planning, voluntary disclosures and tax dispute resolution including tax audit representation and tax litigation. Visit www.Taxpage.com and email David at david@taxpage.com. Author photo courtesy Rotfleisch & Samulovitch P.C. Title image: Rawpixel.